COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Humphreys and Haley 

Argued at Salem, Virginia 

JIMMY ROGER LANE 

 OPINION BY 

v. Record No. 1211-07-3 JUDGE ROBERT P. FRANK 

APRIL 15, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY 

Keary R. Williams, Judge 

 David L. Epling for appellant. 

 Joshua M. Didlake, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Following the entry of conditional guilty pleas, the trial court convicted Jimmy Roger 

Lane, appellant, of three counts of possession with the intent to distribute a Schedule II 

controlled substance (one count for liquid oxycodone, one count for Endocet tablets, which 

contained oxycodone, and one count for oxycodone tablets) and one count of possession with the 

intent to distribute a Schedule III controlled substance, hydrocodone. On appeal, appellant 

contends the trial erred in (1) denying his motion to suppress, as the search warrant affidavit did 

not sufficiently identify the reliability of the informant; and (2) denying his motion to dismiss or 

consolidate the indictments for three counts of possession with the intent to distribute 

oxycodone, arguing on double jeopardy grounds that he was convicted multiple times for a 
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single offense. 1

 For the reasons stated, we affirm in part and reverse in part, and remand this 

case to the trial court.2

BACKGROUND

 On June 3, 2005, narcotics investigator Raymond Webb with the Buchanan County 

Sheriff’s Office filed an affidavit for a search warrant to search appellant’s person and home for 

evidence of drug possession and/or distribution. On the form affidavit provided by the sheriff’s 

office, Webb averred that, “within the past 72 hours, a reliable informant has seen a large 

quantity of narcotics in the residence and on the person of [appellant].” In the space provided to 

set forth the facts to determine the informant’s credibility or reliability of the information, Webb 

recited that, “the reliable informant has given information in the past that has led to the seizure of 

illegal narcotics.” 

 The magistrate issued a search warrant for appellant’s residence based on Webb’s 

affidavit. Webb then proceeded to appellant’s residence and executed the search warrant. 

 When Webb arrived at appellant’s residence, he found appellant standing “on the front 

porch in the garage area.” Webb informed appellant that he was there to serve a search warrant, 

and appellant gave Webb consent to conduct a pat-down search. During that search, Webb 

recovered “several different items in plastic baggies in [appellant’s] pockets.” 

 In appellant’s right pocket, Webb found (1) a plastic bag containing sixty-two “round, 

green coated tablets,” marked “OC” and “80,” later determined to be oxycodone; (2) a plastic 

bag containing $638 of U.S. currency; (3) a plastic bag containing $3,490 in U.S. currency; and 

 1

 The only issue on appeal that relates to the conviction for hydrocodone is appellant’s 

challenge to the search warrant; appellant’s motion for consolidation or dismissal applied only to 

the three convictions involving oxycodone. 

2

 Appellant also pled guilty to four counts of distribution. However, appellant does not 

challenge those convictions on appeal. 
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(4) a plastic bag containing seventeen white, oblong tablets, later determined to be hydrocodone. 

In appellant’s left pant pocket, Webb found: (1) $181 in U.S. currency; and (2) a plastic bag 

“containing twenty-eight white round tablets,” later determined to be Endocet, a combination of 

oxycodone and acetaminophen that is a generic form of the drug Percoset. 

 During the search of appellant’s residence, officers recovered a “plastic bottle with a 

dropper lid” containing 7.8 milliliters of liquid oxycodone in appellant’s garage. The attached 

garage was approximately 15-20 feet from appellant’s front porch. 

 At the hearing on the motion to suppress, Webb testified that “[w]e had made several 

buys from this residence in the past, plus the informant had been at this residence that day [when 

the search warrant was served] and observed a large quantity of narcotics.” The informant 

personally purchased narcotics from appellant at that same residence on four different occasions. 

 Appellant moved to suppress all of the evidence recovered from his person and found 

inside of his home, arguing that the affidavit offered in support of the search warrant did not 

establish the reliability of the informant to a sufficient degree. Thus, appellant argued that the 

search warrant was issued without probable cause. Appellant also moved to consolidate or 

dismiss two of the three counts of possession with the intent to distribute that involved the liquid 

oxycodone, the oxycodone tablets, and the Endocet tablets. Appellant contended that double 

jeopardy prevented his prosecution on three separate charges for separate quantities of the same 

prohibited substance found at the same time. 

 In denying appellant’s motion to suppress, the trial court determined the affidavit was 

sufficient to show probable cause, as Webb knew at the time he made the affidavit and executed 

the search warrant that the informant had purchased drugs from appellant four separate times. 

Regarding the double jeopardy argument, the trial court found that, because the Endocet tablets 

and the oxycodone tablets had different pharmaceutical compositions and were found in two 
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different pockets of appellant’s pants, those two charges were distinguishable. The trial court 

distinguished the liquid oxycodone based on the fact that it was found in a “separate location.” 

 This appeal follows. 

ANALYSIS

Motion to Suppress

“On appeal from a denial of a suppression motion, we must review the evidence in the 

light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” 

Slayton v. Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003). 

An appellant’s claim that evidence was seized in violation of the 

Fourth Amendment “presents a mixed question of law and fact that 

we review de novo on appeal. In making such a determination, we 

give deference to the factual findings of the trial court and 

independently determine whether the manner in which the 

evidence was obtained [violated] the Fourth Amendment.” 

Wilson v. Commonwealth, 45 Va. App. 193, 202-03, 609 S.E.2d 612, 616 (2005) (alteration in 

original) (quoting Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002)). 

On appeal, “we defer to the trial court’s findings of ‘historical fact’ and give ‘due weight to the 

inferences drawn from those facts by resident judges and local law enforcement officers.’” 

Barkley v. Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234, 238 (2003) (quoting Davis v. 

Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002)). 

Appellant contends that the affidavit, which gave rise to the search warrant, was 

insufficient to show the reliability of the informant. While not conceding the lack of probable 

cause to issue the search warrant, the Commonwealth, in its brief, argues this Court need not 

address probable cause since the “good faith exception” applies.3 

 3

 The trial court, in denying the motion to suppress, found the affidavit was sufficient to 

establish probable cause for the issuance of the search warrant. 
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Assuming, without deciding, that “the warrant was not issued upon probable cause, 

evidence seized pursuant to the warrant is nevertheless admissible if the officer executing the 

warrant reasonably believed that the warrant was valid.” Lanier v. Commonwealth, 10 Va. App. 

541, 547, 394 S.E.2d 495, 499 (1990) (citing United States v. Leon, 468 U.S. 897, 918-21 

(1984)) (other citations omitted). Thus, we will address only whether the good faith exception 

applies. 

The United States Supreme Court has held that “suppression of evidence obtained 

pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual 

cases in which exclusion will further the purposes of the exclusionary rule.” Leon, 468 U.S. at 

918. “[T]he exclusionary rule is designed to deter police misconduct rather than to punish the 

errors of judges and magistrates.” Id. at 916. “In the ordinary case, an officer cannot be 

expected to question the magistrate’s probable-cause determination or his judgment that the form 

of the warrant is technically sufficient.” Id. at 921. 

Under the good faith exception, “[w]here a police officer has an objectively reasonable 

belief that the issuing magistrate had probable cause to issue the search warrant, the officer may 

rely upon the magistrate’s probable cause determination and the evidence will not be excluded.” 

Colaw v. Commonwealth, 32 Va. App. 806, 810, 531 S.E.2d 31, 33 (2000). 

There are four circumstances, however, where an officer cannot 

have an objectively reasonable belief that probable cause exists for 

the search and suppression is an appropriate remedy: “(1) Where 

the magistrate was misled by information in the affidavit which the 

affiant knew was false or should have known was false, (2) the 

issuing magistrate totally abandoned his judicial role, (3) the 

warrant was based on an affidavit ‘so lacking in indicia of probable 

cause’ as to render official belief in its existence unreasonable or 

(4) where the warrant was so facially deficient that an executing 

officer could not reasonably have assumed it was valid.” 

 

However, because we find that the good faith exception applies and the Commonwealth 

did not brief or argue that probable cause was present, we do not reach the question of whether 

the affidavit was based on probable cause. 
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Cunningham v. Commonwealth, 49 Va. App. 605, 618-19, 643 S.E.2d 514, 521 (2007) (quoting 

Colaw, 32 Va. App. at 811, 531 S.E.2d at 33). 

 Appellant contends that the third exception to the good faith rule applies, arguing that the 

underlying affidavit was “bare bones” and so lacking in indicia of probable cause that a 

reasonable police officer would not have believed that the warrant was valid. Specifically, 

appellant maintains that the information in the affidavit was not sufficient to establish the 

informant’s reliability. We disagree. 

 When a confidential informant provides the basis for probable cause, there are two 

considerations that are particularly relevant to our analysis: (1) the veracity or reliability of the 

informant and (2) the informant’s basis of knowledge. Illinois v. Gates, 462 U.S. 213, 230 

(1983). Appellant does not challenge the informant’s “basis of knowledge,” but only the 

informant’s veracity and reliability. 

 We have held that “as long as there is some indicia of probable cause in the underlying 

affidavit, we will apply the good faith exception [provided that] a reasonable police officer, after 

assessing the facts set forth in the affidavit, could have believed that the warrant was valid.” 

Anzualda v. Commonwealth, 44 Va. App. 764, 781, 607 S.E.2d 749, 757 (2005) (en banc) 

(emphasis in original). 

Thus, the pivotal question before us is whether a reasonable police officer, based on the 

facts set forth in the affidavit as to the informant’s reliability, could have believed the warrant 

was valid. 

 Our decision in Tart v. Commonwealth, 17 Va. App. 384, 437 S.E.2d 219 (1993), is 

instructive. In Tart, police officers obtained a search warrant for a motel room where the 

defendant was staying. Id. at 386, 437 S.E.2d at 220. The search warrant was based on an 

affidavit containing information obtained from a confidential informant. Id. The affidavit 
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recited the following facts as to the informant’s reliability: (1) that the informant was presently 

cooperating with police; (2) that the informant had personally observed and had contact with, in 

the last 72 hours, two men selling drugs in two particular motel rooms; and (3) that the informant 

was able to provide a detailed description of the two men. Id. at 386-87, 437 S.E.2d at 220-21. 

Nothing in the affidavit indicated the informant’s prior history of reliability, or that the informant 

had given any information in the past that had led to an arrest or a conviction. Nevertheless, this 

Court held that the “good faith exception” applied, as 

[a]n objectively reasonable belief that probable cause existed was 

provided by [the officer’s] sworn statement that a reliable and 

confidential informant visited the motel room within the past 

seventy two hours and observed a quantity of “crack” cocaine “cut 

up into small rocks[,”] that the confidential informant had contact 

with the occupants of Room 4 and Room 30 of the motel; and that 

these occupants “were associated in regard to the illegal possession 

of the cocaine.” 

Id. at 390, 437 S.E.2d at 223. 

 We conclude the facts in the subject affidavit were not “bare bones,” but established the 

informant’s reliability sufficiently enough to provide some indicia of probable cause. The 

affidavit averred that, “within the past 72 hours, a reliable informant has seen a large quantity of 

narcotics in the residence and on the person of Jimmy Lane” and further that this particular 

informant had “given information in the past that has led to the seizure of illegal narcotics.” 

Here, as in Tart, it is apparent that the informant had personal contact with appellant, was present 

in appellant’s home no more than 72 hours before the search warrant was issued, and had 

personally observed narcotics on appellant and in appellant’s home at that time. Instead of only 

providing a description of the suspects, the informant here was able to provide appellant’s name. 

Additionally, unlike the affidavit in Tart, the affidavit in the instant case recited that the 

informant had a prior history of reliability, namely that he had provided information in the past 

that had led to the seizure of illegal narcotics. Manley v. Commonwealth, 211 Va. 146, 150, 176 
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S.E.2d 309, 313 (1970) (“The most commonly accepted and approved allegation to substantiate 

reliability is that the informer is a person of known and proven reliability and has furnished 

information to law enforcement officers which has been instrumental in procuring convictions.”). 

While the affidavit does not indicate that the informant’s past information had led to a specified 

number of arrests or convictions, the mere fact that the informant’s past information has led to 

the seizure of illegal narcotics indicates that the past information has proven to be correct. Corey 

v. Commonwealth, 8 Va. App. 281, 288, 381 S.E.2d 19, 23 (1989) (“The reliability of any 

informant . . . can be demonstrated if the affidavit states that the informant has previously given 

information which has proven correct.”). 

Given that the informant has provided past information that has proven to be correct, that 

the informant was personally on the property that was the subject of the warrant within 72 hours, 

and that the informant personally observed narcotics at that property and on appellant’s person, 

we conclude that the informant’s reliability was sufficiently established to provide a reasonable 

officer with some indicia of probable cause to support a belief that the warrant was valid. Thus, 

we find that the affidavit was not “so lacking in indicia of probable cause” as to render official 

belief in its existence unreasonable. Accordingly, we affirm the trial court’s denial of appellant’s 

motion to suppress. 

Motion to Dismiss or Consolidate Indictments

 Appellant next contends that, regarding his convictions for possession with the intent to 

distribute Endocet, oxycodone tablets, and liquid oxycodone, the trial court erred in denying his 

motion to dismiss two of the indictments, or, in the alternative, to consolidate the three 

indictments into one count. Appellant argues that, as the three indictments involve the same 
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prohibited substance found at the same time, his conviction and punishment for three separate 

offenses violates the Double Jeopardy Clause of the Fifth Amendment.4

 The Double Jeopardy Clause of the Fifth Amendment “‘protects against a second 

prosecution for the same offense after acquittal. It protects against a second prosecution for the 

same offense after conviction. And it protects against multiple punishments for the same 

offense.’” Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina v. Pearce, 395 U.S. 

711, 717 (1969) (footnotes omitted)). “Where consecutive sentences are imposed at a single 

criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not 

exceed its legislative authorization by imposing multiple punishments for the same offense.” Id.

“‘The issue of multiple punishments actually arises in two contexts. First, two or more 

statutes . . . proscribe . . . particular . . . conduct as criminal offenses. Second, . . . conduct may 

constitute more than one violation of a single criminal proscription.’” Shears v. Commonwealth, 

23 Va. App. 394, 400, 477 S.E.2d 309, 312 (1996) (quoting Jordan v. Commonwealth, 2 

Va. App. 590, 593, 347 S.E.2d 152, 154 (1986)). Here, appellant asserts that he was 

 4

 In its argument on brief, the Commonwealth maintains that appellant does not challenge 

the indictment charging possession with the intent to distribute Endocet. Thus, the 

Commonwealth addressed its argument only to the differences between the charges relating to 

the oxycodone tablets and the liquid oxycodone. In support of this proposition, the 

Commonwealth cites to the conclusion in appellant’s brief where he states, 

In cases numbers 661-05, 662-05, and 663-05, the last two 

indictments violate the principals [sic] of multiple punishment 

contrary to the Double Jeopardy Clause of the United States 

Constitution. [Appellant] respectfully request [sic] that these cases 

be remanded to the Circuit Court of Buchanan County with orders 

to dismiss the last two indictments. 

It is clear from reading this statement that appellant meant only to concede that one

conviction for possession with the intent to distribute oxycodone would be proper; he maintains 

throughout his brief that two of those convictions are in violation of the Double Jeopardy Clause 

because the three charges should have been merged into one. The Commonwealth’s 

interpretation is contrary to a plain reading of appellant’s brief, and, thus, we will not address 

this argument on appeal. 
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unconstitutionally punished by convictions on three indictments arising from a single criminal 

enterprise, the possession of oxycodone with the intent to distribute in violation of Code 

§ 18.2-248.5

“When considering multiple punishments for a single transaction, the controlling factor is 

legislative intent.” Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983). 

The legislature “may determine the appropriate ‘unit of prosecution’ and set the penalty for 

separate violations.” Jordan, 2 Va. App. at 594, 347 S.E.2d at 154. Therefore, although multiple 

offenses may be the “same,” an accused may be subjected to legislatively “authorized cumulative 

punishments.” Id. “It is judicial punishment in excess of legislative intent which offends the 

double jeopardy clause.” Shears, 23 Va. App. at 401, 477 S.E.2d at 312. 

 In enacting Code § 18.2-248, the General Assembly 

declared it “unlawful for any person to . . . sell, . . . or possess with 

intent to . . . sell . . . a controlled substance.” Code § 18.2-248(A). 

Code § 18.2-248(C) prescribes the punishment for “any person 

who violates this section with respect to a controlled substance 

classified in Schedule I or II.” The gravamen of the offense is 

clearly possession of the specified drug with the requisite intent. 

Thus, each distinguishable incident of the offending conduct 

constitutes a “unit of prosecution” for violation of the statute. 

Id. (footnote omitted).6

 “Courts of other jurisdictions [] have concluded it may be constitutionally permissible for 

a defendant to be convicted of more than one drug offense based upon the discovery of separate 

caches of drugs the defendant possessed with distinct purposes.” Peake v. Commonwealth, 46 

Va. App. 35, 41, 614 S.E.2d 672, 676 (2005). 

“Generally, courts which have considered the issue [of multiple 

prosecutions under controlled substance statutes] have determined 

 5

 Because appellant was tried simultaneously on all three indictments, multiple 

prosecution for a single act or offense is not in issue. Clagett v. Commonwealth, 252 Va. 79, 95, 

472 S.E.2d 263, 272 (1996). 

6

 Oxycodone is a Schedule II controlled substance. Code § 54.1-3448. 
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that separate convictions for possession of the same controlled 

substance [with the intent to distribute] will not violate the Double 

Jeopardy Clause if the possessions are sufficiently differentiated by 

time, location, or intended purpose.” 

Id. (quoting Commonwealth v. Rabb, 725 N.E.2d 1036, 1043 (Mass. 2000)). “The 

considerations of time, location, and intended purpose ‘are meant to be disjunctive, with no one 

determinative factor.’” Id. (quoting Rabb, 725 N.E.2d at 1043). “‘[A] determination of the 

existence of separate stashes is not constrained by any particular measure of spatial or temporal 

distance. The proper focus of a “separate stash” inquiry is not on logistics but on demonstrated 

intent.’” Id. (quoting United States v. Smith, 50 M.J. 813, 815 (A.F. Ct. Crim. App. 1999)). 

 The Commonwealth argues that the three amounts of oxycodone recovered from 

appellant are separate and distinct offenses. The Commonwealth maintains that the drugs were 

found in different locations, as the Endocet and oxycodone tablets were found in two separate 

pockets of appellant’s pants and the liquid oxycodone was found in the garage. The 

Commonwealth contends that the drugs can also be differentiated based on their different 

packaging and storage, as the Endocet and oxycodone tablets were found in separate plastic bags 

and the liquid oxycodone was found in a vial. The Commonwealth also points to the different 

forms and appearances of the drugs, as the Endocet tablets were round and white, the oxycodone 

tablets were round and green, and the oxycodone found in the garage was in liquid form. 

Finally, the Commonwealth contends that the different pharmaceutical compositions of the drugs 

support separate convictions, as the Endocet tablets contained both oxycodone and 

acetaminophen, while the liquid oxycodone and oxycodone tablets were “pure oxycodone.” 

 The Commonwealth relies on the reasoning in this Court’s decisions in Shears, 23 

Va. App. 394, 477 S.E.2d 309, and Peake, 46 Va. App. 35, 614 S.E.2d 672, to support its 

argument. However, we find both cases factually distinguishable from the instant case. 
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 In Shears, the defendant was arrested in an informant’s home while attempting to deliver 

drugs to the informant. Shears, 23 Va. App. at 397, 477 S.E.2d at 310. Officers recovered two 

plastic bags of cocaine from the defendant in the informant’s home, one found on the floor near 

the defendant’s foot and one found in the defendant’s pocket. Id. Based on the defendant’s 

statements to police after his arrest that he had been selling cocaine for “a couple of weeks,” 

officers obtained a search warrant for the defendant’s home, where they discovered “numerous” 

plastic bags of cocaine and twenty-eight individual bags of marijuana. Id. at 397-98, 477 S.E.2d 

at 310-11. The defendant argued that the cocaine recovered from his person in the informant’s 

home and the cocaine recovered from his home should have been combined into one offense. Id.

at 400, 477 S.E.2d at 311-12. This Court held: 

Here, defendant does not dispute on appeal that he actually 

possessed cocaine at the informant’s trailer for purposes of 

immediate distribution to a prospective buyer. Manifestly, such 

conduct constitutes a violation of Code § 18.2-248 separate from 

the constructive possession of like drugs elsewhere, despite a 

similar criminal purpose. Hence, defendant committed two distinct 

violations of a single criminal proscription and was appropriately 

subject to attendant cumulative punishments. 

Id. at 401, 477 S.E.2d at 312. 

In Peake, officers executing a search warrant at the defendant’s residence encountered the 

defendant as he was exiting his garage. Peake, 46 Va. App. at 38, 614 S.E.2d at 674. During a 

frisk of the defendant for weapons, an officer recovered a smoking device and .11 ounce of 

marijuana from appellant’s pocket. Id. While searching the home, officers discovered a lockbox 

belonging to the defendant that contained 2.17 ounces of marijuana and a set of digital scales. 

Id. That marijuana was packaged into eleven separate plastic bags, and the defendant later 

admitted to the officers that he sold marijuana intermittently in order to obtain marijuana for his 

personal use for free. Id. The defendant was convicted of misdemeanor possession of marijuana 
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based on the amount found in his pocket, and was convicted in a separate trial of possession of 

marijuana with the intent to distribute based on the marijuana recovered from his lockbox. Id. 

The defendant in Peake argued that his conviction for possession with the intent to 

distribute marijuana violated the Double Jeopardy Clause. This Court ruled that the evidence 

supporting the two separate convictions demonstrated that the defendant possessed each stash of 

drugs with a separate intent. 

Considering appellant’s implicit admission that he used marijuana 

in conjunction with his simultaneous possession of a smoking 

device and a relatively small amount of marijuana, the evidence 

proved appellant’s possession of marijuana in his pocket was for 

personal use. By contrast, the evidence proved appellant’s 

possession of the larger cache of marijuana in the red lockbox was 

for distribution. The marijuana was discovered divided into 

separate bags, with a digital scale, and near a quantity of cash. 

Significantly, appellant told the police he sold marijuana from the 

lockbox so he could get his own marijuana for free. 

Id. at 41-42, 614 S.E.2d at 676 (footnote omitted) (citation omitted). 

 In both Shears and Peake, there was evidence that the defendant had demonstrated 

separate intents with regard to the different stashes of drugs that were recovered. In Peake, one 

charge was based on the defendant’s personal use of marijuana and one charge was based on the 

defendant’s distribution of marijuana, a distinction supported by the defendant’s own statements. 

In Shears, the defendant intended to immediately distribute the cocaine found on his person to a 

specific buyer, but left the remainder of the cocaine in his residence for future sales. Again, the 

defendant’s own statements supported the conclusion that there were two separate intents; the 

defendant in Shears told officers that he had been selling cocaine for a couple of weeks, 

indicating that the stash reserved in his home was intended for a continuing enterprise in the 

distribution of narcotics. 

 Conversely, such evidence is manifestly absent in the instant case. Here, the 

Commonwealth had to prove that the evidence supported appellant’s conviction under three 
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separate indictments involving the same prohibited substance obtained at the same time from 

appellant and his home. However, the Commonwealth presented no evidence as to any different 

uses of different forms of oxycodone. There was no evidence that the different forms of 

oxycodone appealed to different drug users or customers of appellant. The Commonwealth 

failed to demonstrate that appellant had different intents with regards to the different forms of 

oxycodone, for instance, that one was for personal use or was intended specifically for a 

particular buyer. 

 The Commonwealth relies on the different locations where the oxycodone was recovered, 

the different packaging of the oxycodone, the different appearances of the oxycodone, and the 

different pharmaceutical compositions of the oxycodone to support the three separate charges. 

However, these considerations focus on making distinctions in spatial distance and physical 

form. This approach is inconsistent with our analysis in Peake, which clearly placed the 

emphasis on appellant’s “demonstrated intent” with respect to each alleged “separate stash.” 

Peake, 46 Va. App. at 41, 614 S.E.2d at 676. 

The physical separation of the narcotics at issue, which were found in two pockets of 

appellant’s pants and in a part of appellant’s house 15-20 feet from where he was standing, is not 

indicative of any difference in appellant’s demonstrated intent towards the drugs. Nor does the 

fact that the oxycodone was stored in different packages shed any light on appellant’s 

demonstrated intent; there is no evidence in the instant case that indicates that the separate 

packages were in any way significant in terms of demonstrating discrete intents to distribute 

those drugs.7

 The different forms and appearances of the oxycodone also fail to provide support 

 7

 Our case law focuses on the packaging of narcotics in terms of demonstrating an intent 

to distribute. See, e.g., Peake, 46 Va. App. at 42, 614 S.E.2d at 676 (considering the fact that the 

marijuana was divided into separate bags as one of several factors indicating an intent to 

distribute that marijuana as opposed to possessing it for personal use). However, we cannot find 
- 15 -

for the Commonwealth’s argument, as there was no evidence presented at the hearing that these 

different forms and physical appearances had any relevance to demonstrating separate intents.8

With no evidence of how these distinctions relate to demonstrating appellant’s distinct 

intent towards each drug, we cannot find, under the facts of this case, that appellant had three 

separate intents to distribute oxycodone that would support three separate convictions. Without 

such evidence, we could only speculate as to whether location, packaging or different physical 

appearances would prove three separate intents in this case. While these factors certainly have a 

role in demonstrating intent, there is simply no evidence from which a reasonable inference can 

be drawn that supports separate intents with respect to the amounts of oxycodone recovered in 

this case.9

 We find that the Commonwealth has failed to provide evidence that appellant possessed 

different demonstrated intents sufficient to support three separate charges of possession with the 

intent to distribute oxycodone. Thus, we hold that the trial court erred in denying appellant’s 

motion to consolidate or dismiss the indictments. 

CONCLUSION

 We find that the trial court did not err in denying appellant’s motion to suppress the 

narcotics recovered from the execution of the search warrant, as the officer’s actions fall under 

 

precedent that stands for the proposition that the fact that drugs are stored in separate packages, 

without more, can be used to support multiple charges for possession with the intent to distribute. 

8

 The Commonwealth’s contention that the Endocet can be differentiated based on its 

different pharmaceutical composition is unavailing. Endocet is a combination of oxycodone and 

acetaminophen, an over-the-counter, legal medication. Possession of Endocet tablets is 

prohibited only because it contains oxycodone. 

9

 We are not suggesting that the same drugs, found under circumstances identical to this 

case, cannot support separate units of prosecution. We narrowly hold that, without testimony 

demonstrating how these circumstances relate to proving separate intents to distribute, separate 

units of prosecution cannot stand in this case. 
- 16 -

the good faith exception and the affidavit was sufficient to establish the reliability of the 

information received from the informant. We find that the trial court erred in denying 

appellant’s motion to consolidate or dismiss, as appellant’s possession of oxycodone was not 

sufficient to support more than one count of possession with the intent to distribute. We affirm 

appellant’s conviction for possession with the intent to distribute hydrocodone and one of 

appellant’s convictions for possession with the intent to distribute oxycodone. We reverse the 

judgment of the trial court and remand this case to the trial court with instructions to consolidate 

the three indictments into one indictment for possession with the intent to distribute oxycodone, 

and to sentence appellant accordingly. 

Affirmed in part, 

reversed in part, 

and remanded.